Dictionary:
ha·be·as corpus (hā'bē-əs)  |
[Middle English, from Medieval Latin habeās corpus, produce the body (from the opening words of the writ) : Latin habeās, second person sing. present subjunctive of habēre, to have + Latin corpus, body.]
| 5min Related Video: habeas corpus |
| Business Dictionary: Habeas Corpus |
Procedure for obtaining a judicial determination of the legality of an individual's custody. Technically, it is used in the criminal law context to bring the petitioner before the court to inquire into the legality of his confinement. The writ of federal habeas corpus is used to test the constitutionality of a state criminal conviction. The writ is used in the civil context to challenge the validity of child custody and deportations.
| US Supreme Court: Habeas Corpus |
The “Great Writ” of habeas corpus is available so that a judge may inquire into the legality of any form of loss of personal liberty. Detention, or loss of personal liberty, may occur at all levels of government, and may take various forms: incarceration in some sort of jail or penitentiary pursuant to a court judgment, detention in a police station after an arrest, commitment in a mental institution, service in the armed forces, detention on the basis of quarantine regulations, or restraint by private authority, as in the case of spouses or the custody of minors.
Habeas corpus has certain important characteristics. For one thing, there is no statute of limitations regarding access to it, since the right of personal freedom from illegal restraint never lapses. Neither does one failure to secure the writ forbid later application, which means that the usual doctrine regarding the finality of court judgments (res judicata) does not apply to habeas corpus. In recent decisions, the Supreme Court has expressed its disapproval of multiple application for the writ. Furthermore, unlike other legal actions, a relative or friend may petition for the writ in behalf of a person unable to apply on his or her own behalf. Called “the most important human right in the Constitution,” Chief Justice Salmon P. Chase described it in Ex parte Yerger (1868) as “the best and only sufficient defense of personal freedom” (p. 95).
The historical roots of the Great Writ are not clear, but it is usually ascribed to section 39 of Magna Carta (1215). During the Middle Ages the writ had various uses. For example, it could be used to compel a person to appear in court to give testimony. As a remedy against the Crown (that is to say, the government), its availability dates from the end of the fifteenth century. The essential elements of the writ as it is now generally understood were spelled out by Parliament in the Habeas Corpus Act of 1679. In the American colonies the writ was available as part of the common law. After independence, habeas corpus was guaranteed in most of the early state constitutions. The U.S. Constitution, in Article I, section 9, forbids suspension of the writ “unless when in Cases of Rebellion or Invasion the public Safety may require it.” The very first statute enacted by the First Congress, the Judiciary Act of 1789, empowered all federal courts “to grant writs of habeas corpus for the purpose of an inquiry into the cause of commitment.” All states have similar statutes.
The writ orders the person who is responsible for the detention—for example, the warden or jailer—to produce the petitioner (that is, the body, or corpus) quickly, in court, so that a judge may decide the lawfulness of the detention. Neither federal nor state habeas corpus statutes attempt to define just what constitutes an unlawful detention; they merely provide for a procedure by which a judge may look into the matter. However, as Justice William J. Brennan pointed out in Fay v. Noia (1963):
Although in form the Great Writ is simply a mode of procedure, its history is inextricably intertwined with the growth of fundamental rights of personal liberty. For its function has been to provide a prompt and efficacious remedy for whatever society deems to be intolerable restraints. Its root principle is that in a civilized society, government must always be accountable to the judiciary for a man's imprisonment: if the imprisonment cannot be shown to conform with the fundamental requirements of law, the individual is entitled to his immediate release. (pp. 401–402)
Bibliography
— David Fellman
| US Military Dictionary: habeas corpus |
A common-law writ ordering a person who detains another to present that person before a court or judge in order to determine the legality of the detention. Protected by Article I, Section 9 of the U.S. Constitution, the right to habeas corpus is a protection of individual liberty.
See the Introduction, Abbreviations and Pronunciation for further details.
| Political Dictionary: habeas corpus |
Literally, ‘that you have the body’. A writ directed to the person who has someone in detention or custody and commands the detained person to be produced before a court. It dates back to Edward I's reign and was not then intended to get people out of prison but to ensure that they were in lawful custody in prison. The writ has been subject to a large number of statutory interventions and cases decided by the courts. Its constitutional significance is that it is a remedy available against Crown servants or servants acting in the name of the Crown. It was imported into other states that shared the English legal tradition, notably the United States.
Habeas corpus is used to test the validity of detention by the police, detention in cases of deportation, and in cases where there is an alleged breach of immigration regulations. In determining the outcome of the application, the legality of the detention is usually examined by the judge. The Habeas Corpus Acts 1679 and 1816 strengthened the role of the courts, and allowed the courts to determine for themselves the existence of facts, rather than rely on the assertions made by the executive.
Within the United Kingdom, habeas corpus is restricted to the jurisdiction of the English courts. In re Keenan [1972] 1 QB 533, it was held that there was no jurisdiction in the English courts to issue habeas corpus to persons detained in Northern Ireland. There is doubt as to the jurisdiction of the English courts to issue habeas corpus to British subjects throughout the world where the country is ‘a colony, or foreign dominion of the Crown’ (Habeas Corpus Act 1862). Habeas corpus has a greater reputation than perhaps the historical evidence may support, for affording the citizen protection against abuse of power by the state.
— John McEldowney
| British History: habeas corpus |
Before Magna Carta, the writ of habeas corpus constituted a command in the king's name to have a defendant brought physically before the court. It had then no libertarian function. In the 17th cent. it was employed to challenge arbitrary arrests by the royal government. In Darnel's case in 1627, the judges refused to allow bail to a person detained ‘at the special command of the king’. The petition of right (1628) protested at the practice, but opponents of the crown such as Sir John Eliot and John Selden (1629) continued to be committed for political purposes.
When the king lost control of the situation in 1640, his adversaries moved to defend habeas corpus. The Act of 1641 which abolished Star Chamber declared that the writ could ensure that a person imprisoned by king and council should be brought before the court without delay with the cause of imprisonment shown. After the Restoration, the struggle was resumed.
The Habeas Corpus Act of 1679 blocked up many of the loopholes and improved the mechanism of enforcement. In Scotland, the equivalent to habeas corpus was obtained by an Act for Preventing Wrongous Imprisonments in 1701.
| Columbia Encyclopedia: habeas corpus |
| Law Encyclopedia: Habeas Corpus |
[Latin, You have the body.] A writ (court order) that commands an individual or a government official who has restrained another to produce the prisoner at a designated time and place so that the court can determine the legality of custody and decide whether to order the prisoner's release.
A writ of habeas corpus directs a person, usually a prison warden, to produce the prisoner and justify the prisoner's detention. If the prisoner argues successfully that the incarceration is in violation of a constitutional right, the court may order the inmate's release. Habeas corpus relief may also be used to obtain custody of a child or to gain the release of a detained person who is insane, is a drug addict, or has an infectious disease. Usually, though, it is a response to imprisonment by the criminal justice system.
A writ of habeas corpus is authorized by statute in federal courts and in all state courts. An inmate in state or federal prison asks for the writ by filing a petition with the court that sentenced him or her. In most states, and in federal courts, the inmate is given the opportunity to present a short oral argument in a hearing before the court. The petitioner may also receive an evidentiary hearing to establish evidence for the petition.
The habeas corpus concept was first expressed in the Magna Charta, a constitutional document forced on King John by English landowners at Runnymede on June 15, 1215. Among the liberties declared in the Magna Charta was this: "No free man shall be seized, or imprisoned, or disseised, or outlawed, or exiled, or injured in any way, nor will we enter on him or send against him except by the lawful judgment of his peers, or by the law of the land." This principle evolved to mean that no person should be deprived of freedom without due process of law.
The writ of habeas corpus was first used by the common-law courts in thirteenth- and fourteenth-century England. These courts, composed of legal professionals, were in competition with feudal courts, which were controlled by local landowners, or "lords." The feudal courts lacked procedural consistency, and on this basis, the common-law courts began to issue writs demanding the release of persons imprisoned by them. From the late fifteenth to the seventeenth centuries, the common-law courts used the writ to order the release of persons held by royal courts, such as the Chancery, Admiralty courts, and the Star Chamber.
The only reference to the writ of habeas corpus in the U.S. Constitution is contained in Article I, Section 9, Clause 2. This clause provides, "The Privilege of the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it." The writ was suspended by President Abraham Lincoln during the Civil War in 1861 when he authorized his generals to arrest anyone thought dangerous. It was also suspended by Congress in 1863 to allow the Union army to hold people temporarily until trial in the civilian courts. The Union army reportedly ignored the statute suspending the writ and conducted trials under martial law.
In 1789, Congress passed the Judiciary Act of 1789 (ch. 20, § 14, 1 Stat. 73 [codified in title 28 of the U.S.C.A.]), which granted to federal courts the power to hear the habeas corpus petitions of federal prisoners. In 1867, Congress passed the Habeas Corpus Act of February 5 (ch. 28, 14 Stat. 385 [28 U.S.C.A. § 2241 et seq.]). This act gave federal courts the power to issue habeas corpus writs for "any person … restrained in violation of the Constitution, or of any treaty or law of the United States." The U.S. Supreme Court has interpreted this statute to mean that federal courts may hear the habeas corpus petitions of state prisoners as well as federal prisoners.
The writ of habeas corpus is an extraordinary remedy because it gives a court the power to release a prisoner after the prisoner has been processed through the criminal justice system, with all its procedural safeguards and appeals. For this reason, the burden is initially on the petitioning prisoner to prove that he or she is being held in violation of a constitutional right. If the petitioner can meet this burden with sufficient evidence, the burden shifts to the warden to justify the imprisonment.
A prisoner may file a petition for a writ of habeas corpus with the sentencing court only after exhausting all appeals and motions. Federal courts may receive a petition from a state prisoner, but not until the petitioner has attempted all available appeals and motions and habeas corpus petitions in the state courts. Federal prisoners must exhaust all available appeals and motions in the federal sentencing court and federal appeals courts before filing a habeas corpus petition with the sentencing court. If the first petition is denied, the inmate may petition the appeals courts.
A petition for a writ of habeas corpus is a civil action against the jailer. It is not an appeal and not a continuation of the criminal case against the inmate. It is not used to determine guilt or innocence. Rather, the purpose of the suit is solely to determine whether the confinement is in violation of a constitutional right. This is significant because it limits the scope of complaints a petitioner may use as a basis for the writ.
Violation of the Due Process Clauses of the Fifth and Fourteenth Amendments is the most common basis for a writ of habeas corpus. Prosecutorial misconduct, juror malfeasance, and ineffective assistance of counsel are common due process grounds for the writ. Fifth Amendment grounds include failure of the police to give Miranda warnings before in-custody questioning, in violation of the right against self-incrimination, and multiple trials, in violation of the double jeopardy prohibition. The Eighth Amendment right against cruel and unusual punishment is another common ground for habeas corpus relief, especially in cases involving the death penalty or a lengthy prison term.
There are several notable restrictions on the writ's application. Fourth Amendment violations of the right against unreasonable search and seizure cannot be raised in a habeas corpus petition. Inmates are not entitled to a court-appointed attorney for habeas corpus petitions. Newly developed constitutional principles will not be applied retroactively in habeas corpus cases except where doubt is cast on the guilt of the prisoner. Delay in filing a habeas petition may result in its dismissal, if the government is prejudiced (made less able to respond) by the delay. In addition, the petitioner must be in custody to request a writ of habeas corpus. This rule prevents an inmate from challenging a conviction through habeas corpus after serving out a prison term for the conviction.
The law of habeas corpus is ever changing. In the 1990s, the U.S. Supreme Court took steps to further limit the writ's application. In Keeney v. Tamayo-Reyes, 504 U.S. 1, 112 S. Ct. 1715, 118 L. Ed. 2d 318 (1992), the Court held that a habeas corpus petitioner is not entitled to an evidentiary hearing in federal court unless she or he can show two things: a reason for failing to develop evidence at trial, and actual prejudice to the inmate's defense as a result of the failure. In Herrera v. Collins, 506 U.S. 390, 113 S. Ct. 853, 122 L. Ed. 2d 203 (1993), the Court held that a claim of actual innocence is not a basis for federal habeas corpus relief. This means that newly discovered evidence alone does not entitle a petitioner to federal habeas corpus relief.
The availability and import of habeas corpus in state courts is also subject to change through judicial decisions and new laws. For example, in 1995, the Texas Legislature passed a law that made the habeas corpus process concurrent with appeals (Tex. Crim. Proc. Code Ann. art. 11.071). This law effectively limited the number of times a Texas state prisoner could challenge the disposition of a criminal case. Significantly, the law applied to all criminal defendants, including defendants facing the death penalty. Under the legislation, a death row inmate has only one round of review in Texas state courts before seeking relief in federal court.
In 1996 Congress passed a law restricting access to habeas corpus relief (Pub. L. No. 104-132). Under the new law, if a state provides a convict with competent postconviction counsel, there is a six month statute of limitations on filing a habeas petition. If counsel is not provided, the convict has a one year limitations period for investigating and filing the petition. The new law limits the time a federal court can spend on the case, limits its ability to hold evidentiary hearings or challenge factual determinations of the state court, and curtails the possibility of successive habeas petitions. In addition, the law eliminated federal funding for death penalty resource centers, which assist death row inmates with appeals.
Many states have also begun restricting time limits and other aspects of the postconviction review process.
| Latin Phrase: Habeas Corpus |
Literally that you have a body. A writ requiring that a detained individual be brought before a court to decide the legality of that individual's detention.
| Politics: habeas corpus |
A legal term meaning that an accused person must be presented physically before the court with a statement demonstrating sufficient cause for arrest. Thus, no accuser may imprison someone indefinitely without bringing that person and the charges against him or her into a courtroom. In Latin, habeas corpus literally means “you shall have the body.”
| Devil's Dictionary: habeas corpus |
| Wikipedia: Habeas corpus |
Habeas corpus (pronounced /ˌheɪbiːəs ˈkɔrpəs/) (Latin: You (shall) have the body[1]) is a legal action, or writ, through which a person can seek relief from the unlawful detention of him or herself, or of another person. It protects the individual from harming him or herself, or from being harmed by the judicial system. Of English origin, the writ of habeas corpus has historically been an important instrument for the safeguarding of individual freedom against arbitrary state action.
A writ of habeas corpus ad subjiciendum, also known as "The Great Writ", is a summons with the force of a court order addressed to the custodian (such as a prison official) demanding that a prisoner be brought before the court, together with proof of authority, allowing the court to determine whether that custodian has lawful authority to hold that person; if not, the person shall be released from custody. The prisoner, or another person on his behalf (for example, where the prisoner is being held incommunicado), may petition the court or an individual judge for a writ of habeas corpus.
The right to petition for a writ of habeas corpus has long been celebrated as the most efficient safeguard of the liberty of the subject. The British jurist Albert Venn Dicey wrote that the Habeas Corpus Acts "declare no principle and define no rights, but they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty." In most countries, however, the procedure of habeas corpus can be suspended in time of national emergency. In most civil law jurisdictions, comparable provisions exist, but they may not be called "habeas corpus."[2] The reach of habeas corpus is currently being tested in the United States. Oral arguments on a consolidated Guantanamo Bay detention camp detainee habeas corpus petition, Al Odah v. United States were heard by the Supreme Court of the United States on December 5, 2007. On June 12, 2008, the U.S. Supreme Court ruling in Boumediene v. Bush recognized habeas corpus rights for the Guantanamo prisoners. On October 7, 2008, the first Guantanamo prisoners were ordered released by a court considering a habeas corpus petition.[3]
The writ of habeas corpus is one of what are called the "extraordinary," "common law," or "prerogative writs," which were historically issued by the courts in the name of the monarch to control inferior courts and public authorities within the kingdom. The most common of the other such prerogative writs are quo warranto, prohibito, mandamus, procedendo, and certiorari. When the original 13 American Colonies declared independence and became a constitutional republic in which the people are the sovereign, any person, in the name of the people, acquired authority to initiate such writs.
The due process for such petitions is not simply civil or criminal, because they incorporate the presumption of nonauthority. The official who is the respondent has the burden to prove his authority to do or not do something. Failing this, the court must decide for the petitioner, who may be any person, not just an interested party. This differs from a motion in a civil process in which the movant must have standing, and bears the burden of proof.
The right of habeas corpus is referred to in full in legal texts as habeas corpus ad subjiciendum or more rarely ad subjiciendum et recipiendum. The name derives from the operative words of the writ in Medieval Latin:
| “ | Praecipimus tibi quod corpus A.B. in prisona nostra sub custodia tua detentum, ut dicitur, una cum die et causa captionis et detentionis suae, quocumque nomine praedictus A.B. censeatur in eadem, habeas coram nobis ... ad subjiciendum et recipiendum ea quae curia nostra de eo adtunc et ibidem ordinare contigerit in hac parte. Et hoc nullatenus omittatis periculo incumbente. Et habeas ibi hoc breve.'
We command you, that the body of A.B. in Our prison under your custody detained, as it is said, together with the day and cause of his taking and detention, by whatsoever name the said A.B. may be known therein, you have at our Court ... to undergo and to receive that which our Court shall then and there consider and order in that behalf. Hereof in no way fail, at your peril. And have you then there this writ. |
” |
The word habeas in the writ is not in the indicative mood ("You have ..."), but in the subjunctive (specifically the volitive subjunctive): "We command that you have ...". The full name of the writ is often used to distinguish it from similar ancient writs:
That the basic form of the writs of habeas corpus, now written in English, has changed little over the centuries can be seen from the following examples:
| “ | VICTORIA, by the Grace of God, of the United Kingdom of Great Britain and Ireland Queen, Defender of the Faith, to J.K., Keeper of our Gaol of Jersey, in the Island of Jersey, and to J.C. Viscount of said Island, Greeting.
We command you that you have the body of C.C.W. detained in our prison under your custody, as it is said, together with the day and cause of his being taken and detained, by whatsoever name he may be called or known, in our Court before us, at Westminster, on the 18th day of January next, to undergo and receive all and singular such matters and things which our said Court shall then and there consider of him in this behalf; and have there then this Writ. Witness Thomas, Lord DENMAN, at Westminster, the 23rd day of December in the 8th year of Our reign. |
” |
| “ | The United States of America, Second Judicial Circuit, Southern District of New York, ss.:
We command you that the body of Charles L. Craig, in your custody detained, as it is said, together with the day and cause of his caption and detention, you safely have before Honorable Martin T. Manton, United States Circuit Judge for the Second Judicial Circuit, within the circuit and district aforesaid, to do and receive all and singular those things which the said judge shall then and there consider of him in this behalf; and have you then and there this writ. Witness the Honorable Martin T. Manton, United States Circuit Judge for the Second Judicial Circuit, this 24th day of February, 1921, and in the 145th year of the Independence of the United States of America. |
” |
Blackstone cites the first recorded usage of habeas corpus ad subjiciendum in 1305, during the reign of King Edward I. However, other writs were issued with the same effect as early as the reign of Henry II in the 12th century. Blackstone explained the basis of the writ, saying:
| “ | The King is at all times entitled to have an account, why the liberty of any of his subjects is restrained, wherever that restraint may be inflicted. | ” |
The procedure for the issuing of writs of habeas corpus was first codified by the Habeas Corpus Act 1679, following judicial rulings which had restricted the effectiveness of the writ. A previous act had been passed in 1640 to overturn a ruling that the command of the King was a sufficient answer to a petition of habeas corpus.
Then, as now, the writ of habeas corpus was issued by a superior court in the name of the Sovereign, and commanded the addressee (a lower court, sheriff, or private subject) to produce the prisoner before the Royal courts of law. A habeas corpus petition could be made by the prisoner himself or by a third party on his behalf and, as a result of the Habeas Corpus Acts, could be made regardless of whether the court was in session, by presenting the petition to a judge.
Since the 18th century the writ has also been used in cases of unlawful detention by private individuals, most famously in Somersett's Case (1771), where the black slave Somersett was ordered to be freed, the famous words being quoted (or misquoted, see Somersett's Case):
| “ | The air of England has long been too pure for a slave, and every man is free who breathes it. | ” |
The privilege of habeas corpus has been suspended or restricted several times during English history, most recently during the 18th and 19th centuries. Although internment without trial has been authorised by statute since that time, for example during the two World Wars and the Troubles in Northern Ireland, the procedure of habeas corpus has in modern times always technically remained available to such internees. However, as habeas corpus is only a procedural device to examine the lawfulness of a prisoner's detention, so long as the detention was in accordance with an Act of Parliament, the petition for habeas corpus would be unsuccessful. Since the passage of the Human Rights Act 1998, the courts have been able to declare an Act of Parliament to be incompatible with the European Convention on Human Rights. However, such a declaration of incompatibility has no immediate legal effect until it is acted upon by the government.
The wording of the writ of habeas corpus implies that the prisoner is brought to the court for the legality of the imprisonment to be examined. However, rather than issuing the writ immediately and waiting for the return of the writ by the custodian, modern practice in England is for the original application to be followed by a hearing with both parties present to decide the legality of the detention, without any writ being issued. If the detention is held to be unlawful, the prisoner can usually then be released or bailed by order of the court without having to be produced before it. It is also possible for individuals held by the state to petition for judicial review, and individuals held by non-state entities to apply for an injunction.
The Parliament of Scotland passed law to have similar effect to Habeas Corpus in 1701, the Act for preventing wrongful imprisonment and against undue delays in trials, now known as the Criminal Procedure Act 1701 c.6 (being the short title given by Statute Law Revision (Scotland) Act 1964). This Act is still in force although certain parts have been repealed.
The writ of habeas corpus as a procedural remedy is part of Australia's English law inheritance.[4]
In 2005, the Australian parliament passed the Australian Anti-Terrorism Act 2005. Some legal experts questioned the constitutionality of the act, due in part to limitations it placed on habeas corpus.[5]
Habeas corpus rights are part of the British Common Law tradition inherited by Canada. They existed in case law before they were enshrined in the Constitution Act 1982, via Section Ten of the Charter of Rights and Freedoms:[6]
Everyone has the right to on arrest or detention... c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
Suspension of the writ in Canadian history occurred famously during the October Crisis, during which the War Measures Act was invoked by Prime Minister Pierre Trudeau at the request of the Quebec and Montreal governments. The Act was also used to justify German, Slavic, and Ukrainian Canadian internment during the First World War, and Japanese Canadian internment during the Second World War. Both internments were eventually recognized by acts of parliament as historical wrongs.
In Ireland the principle of habeas corpus is guaranteed by Article 40, Section 4 of the Irish constitution. This guarantees "personal liberty" to each individual and outlines a detailed habeas corpus procedure, without actually mentioning the Latin term. However it also provides that habeas corpus is not binding on the Defence Forces during a state of war or armed rebellion.
The state inherited habeas corpus as part of the common law when it seceded from the United Kingdom in 1922, but the principle was also guaranteed by Article 6 of the Constitution of the Irish Free State in force from 1922 to 1937. A similar provision was included when the current constitution was adopted in 1937. Since that date habeas corpus has been restricted by two constitutional amendments, the Second Amendment in 1941 and the Sixteenth Amendment in 1996.
Before the Second Amendment, an individual detained had the constitutional right to apply to any High Court judge for a writ of habeas corpus and to as many High Court judges as they wished. Since the Second Amendment, a prisoner has a right to apply to only one judge, and, once a writ has been issued, the President of the High Court has authority to choose the judge or panel of three judges who will decide the case. The amendment also added a requirement that when the High Court believed someone's detention to be invalid due to the unconstitutionality of a law, it must refer the matter to the Irish Supreme Court and may release the individual on bail only in the interim.
In 1965, the Supreme Court ruled in the O'Callaghan case that the provisions of the constitution meant that an individual charged with a crime could be refused bail only if they were likely to flee or to interfere with witnesses or evidence. Since the Sixteenth Amendment, it has been possible for a court to take into account whether a person has committed serious crimes while on bail in the past.
The Indian judiciary in a catena of cases has effectively resorted to the writ of habeas corpus only to secure release of a person from illegal detention.
The Indian judiciary has dispensed with the traditional doctrine of locus standi. If a detained person is not in a position to file a petition, it can be moved on his behalf by any other person. The scope of habeas relief has expanded in recent times by actions of the Indian judiciary.[7] The habeas writ was used in the Rajan criminal case.
In Malaysia, the right of habeas corpus, short of the name, is enshrined in the Federal Constitution. Article 5(2) provides that "Where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him."
As there are several statutes, for example, the Internal Security Act 1960, that still permit detention without trial, the procedure is usually effective in such cases only if it can be shown that there was a procedural error in the way that the detention was ordered.
While habeas corpus is generally used on the government, it can also be used on individuals. In 2006, a child was allegedly kidnapped by his mother's father after a custody dispute. The father filed habeas corpus against the mother, the grandfather, the grandmother, the great grandmother, and another person alleged to have assisted in the kidnap of the child. The mother did not present the child to the court and was imprisoned for contempt of court.[8] She was released when the child's grandfather came forward with him in late January 2007.
In the Bill of Rights in the Filipino Constitution, habeas corpus is listed near-identically to the U.S. Constitution in Article 3, Section 15:
"The privilege of the writ of habeas corpus shall not be suspended except in cases of invasion or rebellion when the public safety requires it."
In 1971, The Marcos Administration lifted the writ of Habeas Corpus, in an attempt to curb insurgency, and as a prelude to Martial Law.
An act similar to Habeas corpus was adopted in Poland as early as in 1430. Neminem captivabimus, short for neminem captivabimus nisi iure victum, (Latin, "We shall not arrest anyone without a court verdict") was one of the basic rights in Poland and Polish-Lithuanian Commonwealth, stating that the king can neither punish nor imprison any member of the szlachta without a viable court verdict. Its purpose is to release someone who has been arrested unlawfully. Neminem captivabimus has nothing to do with whether the prisoner is guilty, only with whether due process has been observed.
The Constitution of Portugal states that Habeas corpus shall be available to counter the misuse of power in the form of illegal arrest, imprisonment or detention. According to the Portuguese Penal Process Code, the application for it shall be made to the judge conducting the preliminary investigations or to the Portuguese Supreme Court of Justice.
The reasons that may justify an habeas corpus are: exceeded the period to deliver the detainee to judicial power; exceeded the detention period stated by law or judicial decision; detention outside the legally allowed places; detention ordered by an incompetent authority; and detention motivated for fact for which the law does not allow detention.
In 1526 the Fuero Nuevo of Señorío de Vizcaya establishes the hábeas corpus in its territory. The present Spanish Constitution states that A habeas corpus procedure shall be provided for by law to ensure the immediate handing over to the judicial authorities of any person illegally arrested. The law which regulates the procedure is the Law of Habeas Corpus of 24 May 1984 which provides that a person imprisoned may, on his own or through a third person, allege his Habeas Corpus right and request to appear before a judge. The request must specify the grounds on which the detention is considered to be unlawful which can be, for example, that the imprisoner does not have the legal authority, or that the prisoner's constitutional rights were violated or that he was subject to mistreatment, etc. The judge may then request additional information if needed and may issue an Habeas Corpus order at which point the holding authority has 24 hours to bring the prisoner before the judge.
The United States Constitution specifically included the English common law procedure in the Suspension Clause, located in Article One, Section 9. It states:
| “ | The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it. | ” |
The writ of habeas corpus ad subjiciendum is a civil, not criminal, ex parte proceeding in which a court inquires as to the legitimacy of a prisoner's custody. Typically, habeas corpus proceedings are to determine whether the court which imposed sentence on the defendant had jurisdiction and authority to do so, or whether the defendant's sentence has expired. Habeas corpus is also used as a legal avenue to challenge other types of custody such as pretrial detention or detention by the United States Bureau of Immigration and Customs Enforcement pursuant to a deportation proceeding.
The writ of Habeas Corpus was originally understood to apply only to those held in custody by officials of the Executive Branch of the federal government and not to those held by state governments, which independently afford habeas corpus pursuant to their respective constitutions and laws. The United States Congress granted all federal courts jurisdiction under 28 U.S.C. § 2241 to issue writs of habeas corpus to release prisoners held by any government entity within the country from custody in the following circumstances:
In the 1950s and 1960s, decisions by the Warren Supreme Court greatly expanded the use and scope of the federal writ, and the most publicized use of the writ of Habeas corpus in modern times has been to allow federal courts to review death penalty proceedings; however, far more non-capital habeas petitions are reviewed by the federal courts. In the last thirty years, decisions by the Burger and Rehnquist Courts have somewhat narrowed the writ, though the number of habeas petitions filed has continued to rise.
The Antiterrorism and Effective Death Penalty Act of 1996 further limited the use of the federal writ by imposing a one-year statute of limitations and dramatically increasing the federal judiciary's deference to decisions previously made in state court proceedings either on direct appeal from the conviction and sentence, or in a state court habeas corpus action and the associated second round of state appeal (both of which, in the usual case, occur before a federal habeas petition is filed).
On April 27, 1861, President Abraham Lincoln suspended habeas corpus in Maryland and parts of Midwestern states.
Whereas, It has become necessary to call into service, not only volunteers, but also portions of the militia of the States by draft, in order to suppress the insurrection existing in the United States, and disloyal persons are not adequately restrained by the ordinary processes of law from hindering this measure, and from giving aid and comfort in various ways to the insurrection. Now, therefore, be it ordered, that during the existing insurrection, and as a necessary measure for suppressing the same, all rebels and insurgents, their aiders and abettors within the United States, and all persons discouraging volunteer enlistments, resisting militia drafts, or guilty of any disloyal practice affording aid and comfort to the rebels against the authority of the United States, shall be subject to martial law, and liable to trial and punishment by courts-martial or military commission.
Second: That the writ of habeas corpus is suspended in respect to all persons arrested, or who are now, or hereafter during the rebellion shall be, imprisoned in any fort, camp, arsenal, military prisons, or other place of confinement, by any military authority, or by the sentence of any court-martial or military commission.
In witness whereof, I have hereunto set my hand, and caused the seal of the United States to be affixed. Done at the City of Washington, this Twenty-fourth day of September, in the year of our Lord one thousand eight hundred and sixty-two, and of the Independence of the United States the eighty-seventh.
ABRAHAM LINCOLN. By the President.
WILLIAM H. SEWARD, Secretary of State.
In the early 1870s, President Ulysses S. Grant suspended habeas corpus in nine counties in South Carolina, as part of federal civil rights action against the Ku Klux Klan under the 1870 Force Act and 1871 Ku Klux Klan Act.
In 1942, the Supreme Court ruled in Ex parte Quirin that unlawful combatant saboteurs could be denied habeas corpus and tried by military commission, making a distinction between lawful and unlawful combatants. The writ was suspended in Hawaii during World War II, pursuant to a section of the Hawaiian Organic Act, when martial law was declared in Hawaii in the aftermath of the Japanese attack on Pearl Harbor. The period of martial law in Hawaii ended in October 1944, and the Organic Act's authorization of martial law was ruled not to include the power to close civilian courts in Duncan v. Kahanamoku, 327 U.S. 304 (1946).
The 1950 case Johnson v. Eisentrager denied access to habeas corpus for nonresident aliens captured and imprisoned abroad in a US-administered foreign court.
In 1996, following the Oklahoma City bombing, Congress passed (91-8-1 in the Senate, 293-133-7 in the House) and President Clinton signed into law the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The AEDPA was to "deter terrorism, provide justice for victims, provide for an effective death penalty, and for other purposes."
The AEDPA contained one of the few limitations on habeas corpus. For the first time, its Section 101 set a statute of limitations of one year following conviction for prisoners to seek the writ. It limits the power of federal judges to grant relief unless the state court's adjudication of the claim resulted in a decision that was (1) contrary to, or involved an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. It generally but not absolutely barred second or successive petitions, with several exceptions. Petitioners who had already filed a federal habeas petition were required first to secure authorization from the appropriate United States Court of Appeals, to ensure that such an exception was at least facially made out.
The November 13, 2001, Presidential Military Order gave the President of the United States the power to detain suspects, suspected of connection to terrorists or terrorism as an unlawful combatant. As such, it was asserted that a person could be held indefinitely without charges being filed against him or her, without a court hearing, and without entitlement to a legal consultant. Many legal and constitutional scholars contended that these provisions were in direct opposition to habeas corpus and the United States Bill of Rights.
In Hamdi v. Rumsfeld, 542 U.S. 507 (2004), the Supreme Court reaffirmed the right of United States citizens to seek writs of habeas corpus even when declared enemy combatants.
In Hamdan v. Rumsfeld, 548 U.S. 557 (2006), Salim Ahmed Hamdan petitioned for a writ of habeas corpus, challenging that the military commissions set up by the Bush administration to try detainees at Guantánamo Bay “violate both the Uniform Code of Military Justice and the four Geneva Conventions.” In a 5-3 ruling, the Supreme Court rejected Congress's attempts to strip the courts of jurisdiction over habeas corpus appeals by detainees at Guantánamo Bay. Congress had previously passed the Department of Defense Appropriations Act of 2006 which stated in Section 1005(e), “Procedures for Status Review of Detainees Outside the United States”:
On 29 September 2006, the House and Senate approved the Military Commissions Act of 2006 (MCA), a bill that would remove habeas corpus for any person determined to be an “unlawful enemy combatant" engaged in hostilities or having supported hostilities against the United States”[9][10] by a vote of 65–34. (This was the result on the bill to approve the military trials for detainees; an amendment to remove the unavailability of habeas corpus failed 48–51.[11]) President Bush signed the Military Commissions Act of 2006 into law on October 17, 2006. The declaration of a person as an "unlawful enemy combatant" is at the discretion of the US executive branch of the administration, and there is no right of appeal, with the result that this potentially eliminates habeas corpus for any non-citizen.
With the MCA's passage, the law altered the language from “alien detained … at Guantánamo Bay”:
On 20 February 2007, the U.S. Court of Appeals for the District of Columbia Circuit upheld this provision of the MCA in a 2-1 decision of the Case Boumediene v. Bush. The Supreme Court let the Circuit Court's decision stand by refusing to hear the detainees' appeal. On June 29, 2007, the U.S. Supreme Court reversed its April 2007 decision and agreed to hear the appeals of Guantanamo detainees who are seeking habeas corpus review of their detentions.[12]
Under the MCA, the law restricts habeas appeals for only those aliens detained as "enemy combatants," or awaiting such determination. Left unchanged is the provision that, after such determination is made, it is subject to appeal in U.S. Court, including a review of whether the evidence warrants the determination. If the status is upheld, then their imprisonment is deemed lawful.
There is, however, no legal time limit which would force the government to provide a Combatant Status Review Tribunal (CSRT) hearing. Prisoners are legally prohibited from petitioning any court for any reason before a CSRT hearing takes place.
On January 17, 2007, Attorney General Gonzales asserted in Senate testimony that while habeas corpus is "one of our most cherished rights," the United States Constitution does not expressly guarantee habeas rights to United States residents or citizens.[13] As such, the law could be extended to U.S. citizens and held[citation needed] if left unchecked.[citation needed]
As Robert Parry writes in the Baltimore Chronicle & Sentinel:
| “ | Applying Gonzales’s reasoning, one could argue that the First Amendment doesn’t explicitly say Americans have the right to worship as they choose, speak as they wish or assemble peacefully.
Ironically, Gonzales may be wrong in another way about the lack of specificity in the Constitution’s granting of habeas corpus rights. Many of the legal features attributed to habeas corpus are delineated in a positive way in the Sixth Amendment...[14] |
” |
To date, there has been at least one confirmed case in which non-American civilians have been incorrectly classified as enemy combatants.[15]
On June 7, 2007, the Habeas Corpus Restoration Act of 2007 was approved by the Senate Judiciary Committee with an 11-8 vote split along party lines, with all but one Republican voting against it.[16] Although the Act would restore statutory habeas corpus to enemy combatants, it would not overturn the provisions of the AEDPA which set a statute of limitations on habeas corpus claims from ordinary civilian federal and state prisoners.[citation needed]
On June 11, 2007, a federal appeals court ruled that Ali Saleh Kahlah al-Marri, a legal resident of the United States, could not be detained indefinitely without charge. In a two-to-one ruling by the Fourth Circuit Court of Appeals, the Court held the President of the United States lacks legal authority to detain al-Marri without charge; all three judges ruled that al-Marri is entitled to traditional habeas corpus protections which give him the right to challenge his detainment in a U.S. Court.
On June 12, 2008, the United States Supreme Court ruled 5-4 in Boumediene v. Bush that terror suspects detained by the United States in Guantanamo Bay detainment camp have the right to seek a writ of habeas corpus in US Federal Court.[17]
In July 2008, the Richmond-based 4th Circuit Court rules: "if properly designated an enemy combatant pursuant to the legal authority of the President, such persons may be detained without charge or criminal proceedings for the duration of the relevant hosilities."[18]
On October 7, 2008, US District Court judge Ricardo M. Urbina ruled that 17 Uyghurs, Muslims from China's northwestern Xinjiang region, must be brought to appear in his court in Washington, DC, three days later: "Because the Constitution prohibits indefinite detentions without cause, the continued detention is unlawful." [19]
On January 21, 2009, US President Barack Obama issued an executive order regarding the Guantanamo Bay Naval Base and the individuals held there. This order asserted that "[they] have the constitutional privilege of the writ of habeas corpus". [20]
Habeas corpus is an action often taken after sentencing by a defendant who seeks relief for some perceived error in his criminal trial. There are a number of such post-trial actions and proceedings, their differences being potentially confusing, thus bearing some explanation. Some of the of the most common are an appeal to which the defendant has as a right, a writ of certiorari, a writ coram nobis and a writ of habeas corpus.
An appeal to which the defendant has a right cannot be abridged by the court which is, by designation of its jurisdiction, obligated to hear the appeal. In such an appeal, the appellant feels that some error has been made in his trial, necessitating an appeal. A matter of importance is the basis on which such an appeal might be filed: generally appeals as a matter of right may only address issues which were originally raised in trial (as evidenced by documentation in the official record). Any issue not raised in the original trial may not be considered on appeal and will be considered estoppel. A convenient test for whether a petition is likely to succeed on the grounds of error is confirming that (1) a mistake was indeed made (2) an objection to that mistake was presented by counsel and (3) that mistake negatively affected the defendant’s trial.
A writ of certiorari, otherwise known simply as cert, is an order by a higher court directing a lower court to send record of a case for review, and is the next logical step in post-trial procedure. While states may have similar processes, a writ of cert is usually only issued, in the United States, by the Supreme Court, although some states retain this procedure. Unlike the aforementioned appeal, a writ of cert is not a matter of right. A writ of cert will have to be petitioned for, the higher court issuing such writs on limited bases according to constraints such as time. In another sense, a writ of cert is like an appeal in its constraints; it too may only seek relief on grounds raised in the original trial.
A petition for a writ coram nobis, is a post-judgment attack on the outcome of the case. It is made to the trial court and claims that there are errors requiring the court to set aside the verdict and/or the sentence. Use of the writ coram nobis varies from jurisdiction to jurisdiction. However, in most jurisdictions it is limited to situations where a direct appeal was not previously possible--usually because the issue was simply unknown at the time of appeal (that is, a "latent" issue) or because the issue otherwise could not be raised on appeal because of procedural barriers. A common basis for coram nobis petitions is the claim of ineffective assistance of counsel where the alleged ineffectiveness is not shown on the record of the court. In such cases, direct appeal is usually impossible because the critical events are not visible on the record where the appellate court can see them. Thus, a prompt coram nobis petition might be an important vehicle for a defendant to use.
A writ of habeas corpus is often the last opportunity for the defendant to find relief against his guilty conviction. Habeas corpus may be pursued if a defendant is unsatisfied with the outcome of his appeal and has been refused (or did not pursue) a writ of cert, at which point he may petition one of several courts for a writ of habeas corpus. Again, these are granted at the discretion of the court and require a petition. Like appeals or writs of cert, a writ of habeas corpus may overturn a defendant's guilty conviction by finding some error in the original trial. The major difference is that writs of habeas corpus may, and often, focus on issues that lay outside the original premises of the trial, i.e., issues that could not be raised by appeal or writs of cert. These often fall in two logical categories: (1) that the trial lawyer was ineffectual or incompetent or (2) that some constitutional right has been violated.
As one moves farther down the chain of post-trial actions, relief becomes progressively more unlikely. Knowing the differences between these actions and their intended use are an important tool in increasing one's chances for a favorable outcome. Use of a lawyer is therefore often considered advisable to aid one attempting to traverse the complex post-trial landscape.
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